Northwest United Educators, herein Complainant, having on February 15, 1991
filed a complaint of prohibited practices with the Wisconsin Employment Relations
Commission, wherein it alleged that the Cameron School District, herein
Respondent, has unilaterally changed terms and conditions of employment for unit
employes by discontinuing to give employes parent/teacher conference days off
with pay, in violation of Sec. 111.70(3)(a)1, 2 and 4, Wis. Stats.; the
Commission, on March 20, 1991 having appointed Sharon Gallagher Dobish, a member
of its staff to act as Examiner in the matter; the Respondent having on April 15,
1991, filed a Motion to Dismiss the instant complaint along with a supporting
brief; also on April 15th, Respondent placed a conference call to the Examiner
and Complainant wherein the parties engaged in oral argument regarding the merits
of Respondent's Motion to Dismiss; Complainant did not file a written brief in
opposition to Respondent's Motion to Dismiss but chose to orally argue against
Respondent's Motion during the April 15th conference call; and the Examiner, for
the reasons contained in the accompanying Memorandum, believing that the
complaint should not properly be dismissed at this time, makes and issues the
following

ORDER

IT IS ORDERED that Respondent's Motion to Dismiss the complaint and to
defer the matter to grievance arbitration be and the same hereby is denied.

Dated at Madison, Wisconsin this 26th day of April, 1991.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

By

Sharon Gallagher Dobish, Examiner

CAMERON SCHOOL DISTRICT

MEMORANDUM ACCOMPANYING ORDER

DENYING RESPONDENT'S MOTION

TO DISMISS COMPLAINT

Respondent argued in its written Motion as well as during the April 15th
conference call that the complaint herein should be dismissed on the grounds that
no important issues of law or policy are involved herein and that the complaint
allegations should be deferred to the grievance arbitration procedure contained
in the effective collective bargaining agreement because the collective
bargaining agreement addresses itself to the underlying allegations of the
complaint. Respondent also stated it is willing to waive any technical/
procedural impediments to processing a grievance should deferral be ordered.
Complainant responded, during the conference call, that no grievance has been
filed regarding the events which gave rise to the complaint; that the parties
have had a collective bargaining relationship since 1986; that the complaint does
not allege a violation of the effective labor agreement; that Complainant is not
alleging or contending herein that any violation of that agreement has occurred;
that the collective bargaining agreement is silent regarding the complaint
allegations and the Complainant seeks a decision herein whether the Respondent
unilaterally discontinued a practice of granting unit employes a paid holiday on
parent/teacher days.

It is well-established that the Commission has jurisdiction to hear and
decide cases which allege prohibited practices but which could also be resolved
through an existing grievance arbitration procedure. However, the exercise of
this jurisdiction is discretionary with the Commission. As Examiner Houlihan
stated in Racine Unified School District, Dec. No. 18443-B (1981),

. . . The Commission has previously stated that it will abstain and
defer
only after it is satisfied that the Legislature's goal, to encourage the
resolution of disputes through the method agreed to by the parties, will be
realized, and that there are no superseding considerations in a particular case.
Among the guiding criteria considered by the Commission for deferral are the
following: 1) The parties must be willing to arbitrate and renounce technical
objections which would prevent a decision on the merits by the arbitrator; 2) The
collective bargaining agreement must clearly address itself to the dispute; and
3) The dispute must not involve important issues of law or policy. 1/ (Footnote
omitted)

In the instant case, although the Respondent has agreed to renounce any
technical/procedural objections it could otherwise have raised to the processing
of a grievance covering the events leading up to the instant complaint, it is
significant here, that Complainant has not filed a grievance which could then be
deferred to arbitration. Nor has Complainant evinced a willingness to process
such a grievance were it filed. In addition, the complaint does not allege a
violation of the effective bargaining agreement between the parties. In oral
argument, Complainant took the position that the contract is silent on the points
in issue in this case and that no violation of the agreement has occurred.
Rather, Complainant argued that Respondent unilaterally changed a past practice
(going back to perhaps 1986) which Complainant contended is the basis of the
complaint herein and this is the specific action for which Complainant seeks a
remedy. Thus, the parties are clearly in disagreement whether the contract
addresses itself of the specific dispute underlying this complaint.

Therefore, the undersigned concludes that there is insufficient evidence
to grant Respondent's Motion to Dismiss at this time. Based upon all written and
oral communications on this point, it is clear that this is a contested case
requiring a full hearing on the pleadings. (1)